WHAT IS A STATE?
In broad terms, a political organization of society is known as State. It is a form of human association with a purpose of establishing law and order in the society. The idea behind formation of a state is to settle the disputes among individuals by way of laws.
The definition of State was evolved according to the change is social dynamics. The idea of western state can be traced back to Aristotle and Plato’s theories, wherepolis, or city-state, was defined as the ideal form of association, where the whole community’s religious, cultural, political, and economic needs could be satisfied. The city-state was self-sufficient and was perceived by Aristotle as the means of developing morality among the individuals in the community.
In the 16th century, a modern concept of state emerged in the theories of Machiavelli and Bodin. Machiavelli’s concept of state was centered aroundthe importance of the durability of government. It set aside moral considerations and focusedcompletely on the strength of the ruler. However, Bodin’s view was that power is not sufficient in itself to create a sovereign. Rules must be complied with morality to be long lasting, and need to be continuous. In other words a means of establishing succession is essentially state. This theory worked for the time its proponent formulated it and supported the form of government followed at that time, monarchy.
Later on, the concept of state was thought of as a “social contract” According to Locke the state is the social contract between individuals whereby they agree not to infringe on each other’s “natural rights” to life, liberty, and property, in exchange for which each man secures his own “sphere of liberty.”
Rousseau recognized the state as the environment for the moral development of humanity. Rousseau’s theory was a deviation from his predecessor whose theory revolved around monarchy. He proposed that the state owed its authority to the general will of the people. According to him, the nation is sovereign, and the law is the will of the people.
In the development of concept of State next was Hegel. He said the state was the highest form of social existence. According to him, Legitimacy of the state comes from upholding common morals rather than particular interest of the individuals in a society. He believed in the power of national aspiration. He says that every man is subordinate to the state and if a state claims one’s life, he must surrender it. This differed from his predecessor Immanuel Kant, who proposed the establishment of a league of nations to end conflict and to establish a “perpetual peace.”
In the 19thcentury new idea of State emerged. Jeremy Bentham proposed state as an artificial means of producing a unity of interest and a device for maintaining stability. As per him,the role of the state was to ensure more happiness and lack of pain in the individuals. This theory is known as the utilitarian theory.
In later times Karl Marx suggested that a state is nothing but an “apparatus of oppression”. It is operated by the ruling or a stronger class to ensure economic supremacy over the weaker class. He saw state as the product of class struggle, the struggle between “haves” and “haves not”.
Later on Hans Kelsen came up with the theorywhich defined the state as simply a centralized legal order, with no more sovereign than the individual, in that it cannot be defined only by its own existence and experience. It must be seen in the context of its interaction with the rest of the world.
In modern times a state can be said to be more than a government. As we know governments change, but states are perpetual. A state is the means of rule over a defined or “sovereign” territory with a population. It is comprised of an executive, a bureaucracy, courts and other institutions to ensure law and order is maintained. But, along with that a state also levies taxes and operates a military and police force. States distributes and re-distribute resources and wealth. As per legal dictionary, in broad terms a State can be defined as “Groups of people which have acquired international recognition as an independent country and which have a population, and a defined and distinct territory.”
ARTICLE 12 OF THE CONSTITUTION OF INDIA
State as provided under Article 12 of the Constitution has four components:
( a ) The Government and Parliament of India Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States
( b ) The Government and Legislature of each State State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.
( c ) Local Authorities within the territory of India Authority means
( i ) Power to make rules, bye- laws, regulations, notifications and statutory orders.
( ii ) Power to enforce them.
Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.
( d ) Other Authorities
Authorities other than local authorities working
( i ) Within the territory of India or;
( ii ) Outside the territory of India.
SOME IMPORTANT JUDGMENTS
In Rajasthan State Electricity Board v/s Mohan Lal it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It should- ( i ) Be created by the Constitution of India; (ii ) Have power to make laws; ( d ) Performance of functions very close to governmental or sovereign functions
In R.D.Shetty v/s International Airport Authority, the Court laid down five tests to be an other authority- ( i ) Entire share capital is owned or managed by State. ( ii ) Enjoys monopoly status. ( iii ) Department of Government is transferred to Corporation. ( iv ) Functional character governmental in essence. ( v ) Deep and pervasive State control ( f ) Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.
Whether Judiciary would be included in the definition of State or not?
The Judiciary is not expressly mentioned in the Article 12 and a great amount of dissenting opinions exist on the same matter. Bringing Judiciary entirely under Article 12 causes a great deal of confusion as it comes with an attached inference that the very guardian of our fundamental rights is himself capable of infringing them. Perhaps with the help of relevant judgments this can be better understood :
However, in Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771 the Apex Court reaffirmed and ruled that no judicial proceeding could be said to violate any of the Fundamental rights and that it is a settled position of law that superior courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.
This leaves with us with the rationale that a Superior Judicial body when acting “Judicially” would not fall under the definition of State but when it performs any administrative or similar functions e.g conducting examination, it will fall under the definition of “state” and that remedy could be sought in that context only in case of violation of fundamental rights.